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The Supreme Court may soon revisit a legally and semantically tricky question: When does same-sex harassment in the workplace amount to illegal sex discrimination? At its private conference on March 21, the Court will consider whether to grant review in MGM Grand Hotel v. Rene, No. 02-970, along with dozens of other cases. The Court could announce its action as soon as March 24. The MGM Grand, a Las Vegas casino hotel, is asking the high court to reverse a decision of the U.S. Court of Appeals for the 9th Circuit that said Medina Rene, an openly gay butler at the hotel, could pursue a sex discrimination claim under Title VII of the Civil Rights Act. Rene worked on the hotel’s 29th floor, catering to wealthy and high-profile guests. Like Rene, all the other butlers on the floor, and their supervisors, were male. Fellow butlers, according to Rene, harassed him daily with crude sexual comments, gestures, and touching. The MGM Grand fired him in 1996, claiming that as an “aspiring lyricist,” he was “neglecting his job and pestering MGM Grand’s clientele with his songwriting ideas.” But Rene said he was harassed and fired because he was gay. He filed a discrimination claim with the Equal Employment Opportunity Commission and then in federal court. The EEOC dismissed the complaint, and a district court granted summary judgment to the hotel. The trial court held that Title VII, while barring gender discrimination, did not prohibit discrimination on the basis of sexual orientation. That ruling was subsequently affirmed by a three-judge panel of the 9th Circuit. But an en banc panel of the 9th Circuit then went the other way — holding, in effect, that the distinction does not matter. “We would hold that an employee’s sexual orientation is irrelevant for purposes of Title VII,” Judge William Fletcher wrote in the lead opinion, joined by four other judges. “It is enough that the harassers have engaged in severe or pervasive unwelcome physical conduct of a sexual nature.” Fletcher elaborated, “Rene’s tormentors did not grab his elbow or poke their fingers in his eye. They grabbed his crotch and poked their fingers in his anus.” Three judges joined in a separate concurrence that agreed with the result but for different reasons. And four judges dissented. The en banc majority cited the Supreme Court’s 1998 ruling in Oncale v. Sundowner Offshore Services Inc., which said a male oil rig worker was not barred from making a Title VII claim simply because his alleged harassers were of the same sex. The MGM Grand, in its appeal to the Supreme Court, argues the 9th Circuit’s Fletcher misinterpreted Oncale and that the ruling conflicts with most other circuits. The hotel’s lawyer, Paul Grossman of Paul, Hastings, Janofsky & Walker in Los Angeles, argued that even under Oncale, Title VII would be violated only if Rene could show that the harassing conduct occurred because he was male — not because he was homosexual. “Sexual content without more is not enough,” Grossman wrote. “A plaintiff must prove that the harassment was the result of a discriminatory animus resulting from his or her gender.” Gender stereotyping — also cited by judges on the en banc panel as a justification for a Title VII claim — does not apply in Rene’s case either, Grossman said. “Male homosexuals by definition depart from at least one gender stereotype, that of being sexually attracted to women.” Rene’s lawyer urged the high court not to review the 9th Circuit decision and to allow the case to proceed to trial. “The harassment was severe and pervasive and was based on [Rene's] being male, as well as on his supervisor’s and co-workers’ view that he did not meet their stereotypical expectations of how men should act,” wrote Richard Segerblom of Las Vegas. Segerblom also argued that the fractured en banc decision is of little precedential value and should not take up the high court’s time. OTHER CASES UP FOR REVIEWCentral Laborers’ Pension Fund v. Heinz, No. 02-891. Suspension of early retirement benefits and ERISA. • Mulvaney Mechanical Inc. v. Sheet Metal Workers International Association Local 38, No. 02-924. Whether the arbitrator, not the court, decides if a party was bound to arbitrate pursuant to a collective bargaining agreement when the other party disavowed being bound by the agreement. • Riverside County, Calif. v. Watson, No. 02-1040. Award of attorney fees under 42 U.S.C. �1988. • White Plains, N.Y. v. TCG New York Inc., No. 02-1062. Whether the Telecommunications Act of 1996 pre-empts local regulation of use of public rights-of-way by telephone companies. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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